Hector HurstApplicantMr R & Mrs J Osgood – Flat 1 Jill Kingham – Flat 2 Mr S & Mrs L Cosby – Flat 3 Mr A & Mrs F Tice – Flat 4 Mr C & Mrs D Donovan – Flat 5 Mr R & Mrs M Mitchell – Flat 6Respondent
Before
Tribunal Judge BowdenArquero Management Limited for the ApplicantTo dispense with the requirement to consult for the RespondentDate 10 July 2026Property: 5GBType of application: lessees about major works section 20ZA of the Landlord and Tenant Act 1985
DECISION
This is a formal order of the Tribunal which must be complied with by the parties. Communications to the Tribunal MUST be made by email to rpsouthern@justice.gov.uk. All communications must clearly state the Case Number and address of the premises. Summary of Decision(1) The applicant is granted dispensation under Section 20ZA of the Landlord and Tenant Act 1985 from the consultation requirements imposed on the landlord by Section 20 of the 1985 Act in relation to the works to repair the balcony leak and associated damage.(2) The Tribunal has made no determination on whether the costs of the works are reasonable or payable. Background The applicant is Hector Hurst[2]The respondents are Mr R & Mrs J Osgood – Flat 1 Jill Kingham – Flat 2 Mr S & Mrs L Cosby – Flat 3 Mr A & Mrs F Tice – Flat 4 Mr C & Mrs D Donovan – Flat 5 Mr R & Mrs M Mitchell – Flat 6 together, the “Lessees”[3]The applicant seeks dispensation under Section 20ZA of the Landlord and Tenant Act 1985 from the consultation requirements imposed on the landlord by Section 20 of the 1985 Act. The application was received on 21 May 2026.[4]The property is described by the applicant as: a. The property is a 2-bedroom flat in a purpose-built block of 6 flats.[5]The applicant explains that:a. The property (being one of the six flats) has had a leak run into it from the balcony of the flat above.b. The original contractor who laid the waterproofing has attended the property to make repairs but will need to do further works as there are still leak issuesc. As there are leak issues within the property (being one of the six flats), they need to be resolved promptly, and they cannot afford to wait the normal Section 20 process, as this will allow the damage to become a lot worse.[6]The Tribunal gave Directions on 04 June 2026 listing the steps to be taken by the parties in preparation for the determination of the dispute, if any.[7]The Directions stated that the Tribunal would determine the application on the papers received unless a party objected in writing to the Tribunal within 14 days of the date of receipt of the Directions. No party has objected to the application being determined on the papers.[8]The only issue for the Tribunal is whether it is reasonable to dispense with the statutory consultation requirements. This application is not about the proposed costs of the works, and whether they are recoverable from the leaseholders as service charges or the possible application or effect of the Building Safety Act 2022. The leaseholders have the right to make a separate application to the Tribunal under section 27A of the Landlord and Tenant Act 1985 to determine the reasonableness of the costs, and the contribution payable through the service charges. The Law[9]Section 20 of the Landlord and Tenant Act 1985 (“the Act”) and the related Regulations provide that where the lessor undertakes qualifying works with a cost of more than £250 per lease, the relevant contribution of each lessee (jointly where more than one under any given lease) will be limited to that sum unless the required consultations have been undertaken or the requirement has been dispensed with by the Tribunal. An application may be made retrospectively.[10]The relevant section of the Act reads as follows: S.20 ZA Consultation requirements: Where an application is made to a Leasehold Valuation Tribunal for a determination to dispense with all or any of the consultation requirements in relation to any qualifying works or qualifying longterm agreement, the Tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements.[11]The appropriate approach to be taken by the Tribunal in the exercise of its discretion was considered by the Supreme Court in the case of Daejan Investment Limited v Benson et al [2013] UKSC 14.[12]The leading judgment of Lord Neuberger explained that a Tribunal should focus on the question of whether the lessee will be or had been prejudiced in either paying where that was not appropriate or in paying more than appropriate because the failure of the lessor to comply with the regulations. The requirements were held to give practical effect to those two objectives and were a means to an end, not an end in themselves.[13]The factual burden of demonstrating prejudice falls on the lessee. The lessee must identify what would have been said if able to engage in a consultation process. If the lessee advances a credible case for having been prejudiced, the lessor must rebut it. The Tribunal should be sympathetic to the lessee(s).[14]Where the extent, quality and cost of the works were in no way affected by the lessor’s failure to comply, Lord Neuberger said as follows: I find it hard to see why the dispensation should not be granted (at least in the absence of some very good reason): in such a case the tenants would be in precisely the position that the legislation intended them to be- i.e. as if the requirements had been complied with.[15]The main, indeed normally, the sole question, as described by Lord Neuberger, for the Tribunal to determine is therefore whether, or not, the lessee will be or has been caused relevant prejudice by a failure of the applicant to undertake the consultation prior to the major works, and so whether dispensation in respect of that should be granted.[16]Relevant prejudice is concerned with whether the Lessees have been deprived of a realistic opportunity to:a. challenge the appropriateness of the proposed works; orb. secure that the works are carried out at a lower cost, or by a different contractor, than might otherwise have been the case[17]The question is one of the reasonableness of dispensing with the process of consultation provided for in the Act, not one of the reasonableness of the charges of works arising or which have arisen. If dispensation is granted, that may be on terms.[18]There have been subsequent Decisions of the higher Courts and Tribunals of assistance in the application of the Decision in Daejan, but none are relied upon or therefore require specific mention in this Decision. Consideration[19]The consultation requirements are a means to an end, and not an end in themselves. The Tribunal’s task is not to punish procedural non-compliance, but to consider whether the absence of consultation has caused, or is likely to cause, the tenants to pay more than is reasonable or to pay for works which are inappropriate.[20]The question the Tribunal asked itself was whether, in all the circumstances, and having regard to the issue of relevant prejudice, it is reasonable to dispense with the statutory consultation requirements.[21]The Directions attached a reply form for the respondents to complete to confirm whether they agreed with the application or not, and if opposed, to provide a statement setting out why they oppose.[22]On 18 June 2026, Ms Davies for Arquero Management Limited confirmed that no objections had been received by them.[23]The reason why dispensation from consultation requirements is said to be required is that the leak issues within the property need to be resolved promptly. The freeholder/agent could not afford to wait for the normal Section 20 process to complete, as the delay will allow the damage to become a lot worse.[24]Given the nature of the works and in order to prevent further damage to the property, the Tribunal is satisfied that the qualifying works are of an urgent nature. The works to repair the balcony leak and associated damage are the qualifying works.[25]There has been no objection to the dispensation of the consultation requirements from any of the Lessees. None of the Lessees have therefore asserted that any prejudice has been caused to them. Findings[26]The Tribunal have accepted that the freehold property is Luna, 28 Wharncliffe Road, Highcliffe, Dorset BH23 5GB, based on the letter from Leonard Curtis (UK Limited) dated 16 June 2026 which states: Hurst & Hurst Estates Limited is one of the Designated Members of BRIP 3 (Highcliffe) LLP (Company Registration: OC433549). BRIP 3 (Highcliffe) LLP is the freeholder of the property at Luna, 28 Wharncliffe Road, Highcliffe, Dorset BH23 5GB.[27]Based on in the information before it, the Tribunal is satisfied that Mr Hurst has authority to bring this application on behalf of the freeholder.[28]Luna, 28 Wharncliffe Road, Highcliffe, Dorset BH23 5GB is a purpose-built block of 6 flats. One of the balconies forming part of one of the six leasehold flats is leaking; the resulting water ingress is causing damage to the flat below. The initial remedial works have not resolved the water ingress and further remedial work is required.[29]The Tribunal considered all the evidence submitted by the parties and applied its expert knowledge, general knowledge, and experience in assessing the proposed work and the estimated costs.[30]The Tribunal found that the lack of consultation had not caused, or was likely to cause, the Lessees to pay more than is reasonable or to pay for inappropriate works.[31]The Tribunal finds that nothing different would be done or achieved in the event of a full consultation with the Lessees, except for the potential delay and further deterioration. Determination[32]The Tribunal determines that it is reasonable to dispense with all of the formal consultation requirements in respect of the qualifying works to the building as described in this Decision.[33]This Decision is confined to the determination of the issue of dispensation from the consultation requirements in respect of the qualifying works described in this decision.[34]The Tribunal has made no determination on whether the costs are payable or reasonable. If a Lessee wishes to challenge the payability or reasonableness of those costs, then a separate application under section 27A of the Landlord and Tenant Act 1985 would have to be made.[35]In reaching this decision, the Tribunal has taken account of the fact that no party has objected to the application. The leaseholders have had the opportunity to raise any objection, and they have not done so. The Tribunal does, however, direct that the dispensation is conditional upon the applicant or their agent sending a copy of this decision to all leaseholders within 14 days of receipt so that they are aware of it. Name: Tribunal Judge Bowden Date: 10 July 2026 RIGHTS OF APPEAL[1]A written application for permission must be made to the First-tier Tribunal at the Regional office which has been dealing with the case at the Regional office which has been dealing with the case by email at rpsouthern@justice.gov.uk.[2]The application for permission to appeal must arrive at the Regional office within 28 days after the date this decision is sent to the parties.[3]If the application is not made within the 28-day time limit, such application must include a request for an extension of time and the reason for not complying with the 28-day time limit; the Tribunal will then look at such reason(s) and decide whether to allow the application for permission to appeal to proceed despite not being within the time limit.[4]The application for permission to appeal must state the grounds of appeal and state the result the party making the application is seeking. All applications for permission to appeal will be considered on the papers. Any application to stay the effect of the decision must be made at the same time as the application for permission to appeal.